Court fight heats up over 52 pages of still-secret surveillance info

OAKLAND, CA—The Electronic Frontier Foundation's long quest to make key rulings of the Foreign Intelligence Surveillance Court (FISC) public is nearing its end.

EFF lawyer Mark Rumold faced off with Department of Justice attorney Steven Bressler yesterday in the same courtroom they had sparred in 14 months ago. They were overseen by the same judge, US District Judge Yvonne Gonzalez-Rogers.

Things weren't the same, though. The lawsuit has changed dramatically, due in part to the Snowden leaks about government surveillance, which began to appear in newspapers last June.

Further Reading

New declassifed documents show legal arguments over bulk metadata collection.

And the scope of the case has narrowed. That's partly because the EFF has focused its demands on what it believes are the most important documents: several still-secret FISC opinions, as well as one memo from the White House's Office of Legal Counsel, comprising some 52 pages. It's also narrowed because the Department of Justice has released some of the documents that were asked for. One batch was revealed in November and another was released in March, both posted to the Tumblr blog "IC on the Record," part of the Obama Administration's response to the Snowden leaks.

The most striking revelation from those documents was that some FISC judges sharply criticized the National Security Agency's record of compliance with rules the court had set out for handling its giant database of phone calls and other data.

On Tuesday, the two sides argued over how to dispose of the remainder of this case. Bressler argued that the remaining documents are secret and can't be made public, while Rumold said many of them could be made public and that the judge should review them and decide which ones to release.

“A leak to the press does not declassify”

"Those [released documents] have revealed that the oversight that was supposed to be functioning wasn't working in some instances," Rumold told Gonzalez-Rogers during argument yesterday, advocating the release of more documents. "The FISC very nearly shut down the NSA's programs because of repeated violations of FISC orders. And the government claimed that was information the public didn't have the right to know."

The right to know is more important than ever before, said Rumold, with Congress considering whether or not to reform surveillance rules and how to do so. "The government is continuing to hide under identical claims that were proven to be false a year ago," he concluded. "There's no reason to believe they're more likely to be true now."

When Bressler had the chance to respond, he said that the fact that some material had been made public doesn't mean that more should. "There's one thing Mr. Rumold said that I would agree with," began the DOJ lawyer. "Classified material was unlawfully taken and exposed. But when The Guardian and The Washington Post published it, that didn't declassify it. A leak to the press does not declassify something."

"The government chose to make public a great number of these documents," he continued. "The government shouldn't be penalized for releasing some information when it's still necessary to keep some secret." The government's choice to keep a "handful of documents" secret under exemptions to FOIA law should be respected, he argued.

"Given the sensitivity of the issues, I'm certainly not ruling from the bench on these matters," said Gonzalez-Rogers, who gave no indication as to how she would rule or even what parts of the argument she was most interested in. She took arguments from each lawyer in turn, simply asking for the argument without any specific questions.

At one point, she noted, "We are down to 52 pages from 1,000."

"I don't question that the government has released some information," said Rumold. He noted that the EFF was now asking for a subset of around 200 pages, so the withholding of 52 pages wasn't a small or meaningless fraction.

What’s still secret?

Outside the courtroom, Rumold spoke to Ars about the additional information about US surveillance he's hoping to make public.

"There are still other bulk collection programs we believe are operating under Section 215 [the Patriot Act]," Rumold said. In November, The New York Times and The Wall Street Journalreported that the CIA was collecting Americans' financial records, including bulk data regarding money transfers through companies like Western Union. Its legal justification was the same one used to create the NSA's massive telephony database—that FISC had ruled it legal under Section 215.

Other documents that have been revealed suggest that in addition to the three-hops-out search, there's another kind of search that the NSA is doing with its bulk telephony database. Rumold says the documents the EFF continues to fight for could shed light on what kind of search that is.

The still-secret Office of Legal Counsel memo was sent to the Department of Commerce and regards US Census data—detailed information on the living conditions, family situation, and income of millions of citizens. The Census data is supposed to be kept secret, even from other government agencies. "Did they say Section 215 trumps the Census rules?" asked Rumold.